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Right-to-work laws generally prohibit union membership requirements for employees.
In this case, International Union of Operating Engineers Local 370 claimed that Idaho’s
law goes too far by banning any requirement that a person pay “any dues, fees, assessments,
or other charges of any kind or amount”
to a union as an employment condition.

The union’s lawsuit against the Idaho attorney general’s enforcement of the law experienced
a major setback Oct. 24, as Judge Edward J. Lodge of the U.S. District Court for the
District of Idaho dismissed the case. But the union still might seek to bring about
a federal circuit court split on whether state right-to-work laws may ban employment
requirements of not only actual union membership or the payment of full membership
fees, but also the smaller payment of “representation fees.”

Local 370 argued before Lodge that the National Labor Relations Act preempts Idaho’s
right-to-work statute and that the state law represents an unlawful taking under the
U.S. Constitution’s Fifth Amendment. The judge said the validity of Idaho’s right-to-work
law is an “open question” in the Ninth Circuit, which covers his court. But he sided
with other circuit courts’ rejection of arguments similar to those raised by Local
370.

Union attorney Zoe Palitz of Altshuler Berzon LLP told Bloomberg BNA Oct. 25 that
she expects the union to appeal Lodge’s decision. “We think that the Ninth Circuit
and ultimately the Supreme Court will agree with us that it’s both unfair and contrary
to Congress’s intent to require unions to represent workers entirely for free,” she
said.

The Idaho Office of the Attorney General declined a request to comment on the record.

Company Shut Down Union’s Service Fee Proposal

Boise, Idaho-based locomotive manufacturer MotivePower rejected Local 370’s proposal
to require all bargaining unit employees—the majority of whom weren’t paying the union
anything—to pay a service fee of less than 50 percent of union dues to cover part
of the cost of union representation. MotivePower cited the state’s right-to-work law,
which led to the union’s lawsuit.

Local 370 said the NLRA clearly allows for the service fee it sought at MotivePower
and therefore preempts the state right-to-work law. But Lodge pointed to NLRA Section
14(b), which states that the federal law doesn’t authorize the use of “agreements requiring
membership in a labor organization as a condition of employment in any State or Territory”
where the law bans them.

“[D]ecades of consistent Supreme Court, federal court, state court, and agency precedent
has held Section 14(b) allows states to ban compulsory union fees,” including representation
fees that amount to less than full union dues, Lodge found.

Meanwhile, Local 370 supported its constitutional argument by saying Idaho’s right-to-work
law forces it into “providing uncompensated services to anyone who decides to opt
out of union membership.”

However, Lodge said the U.S. Court of Appeals for the Seventh Circuit dismissed similar
Fifth Amendment-related claims in
Sweeney v. Pence
, 2014 BL 240711, 767 F.3d 654, 200 LRRM 3465, 7th Cir., 2014
. A right-to-work law in Indiana didn’t “take” property from the union in that case,
the
Sweeney court determined. It said this was partly because the union’s duty of fair representation
was mandatory under the NLRA, not the state law, which merely barred the union from
collecting money to cover the costs of performing that duty.

Herzfeld & Piotrowski, Altshuler Berzon LLP and Benjamin Sachs of Harvard Law School
represented Local 370. The Idaho Office of the Attorney General represented itself.

To contact the reporter on this story: Elliott T. Dube in Washington at
edube@bna.com

To contact the editor responsible for this story:
Jo-el J. Meyer at
jmeyer@bna.com

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